U.S. Push to Limit Copyright Law May Be Undercut by TPP Secrecy

WASHINGTON, Jul 5 2012 (IPS) - In a surprise move this week, the United States says it is pushing for limitations to international copyright norms currently under negotiation surrounding the Trans-Pacific Partnership (TPP), the massive free trade agreement that could go into effect by the end of the year.

Observers have expressed cautious optimism at the move, but much will still come down to the exact wording of any eventual agreement. For this reason, some are suggesting that long-criticised secrecy surrounding the talks could lead to a weakening of any progressive new stance on copyright.

“We are concerned that, depending on the actual text and its scope and interpretation, the provision in the TPP will restrict fair use and other copyright exceptions and limitations crucial for the progress and access of culture, science, education, and innovation,” five U.S. groups focused on intellectual property rights warned in a release on Tuesday.

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In a blog post on its website on Tuesday, the U.S. Trade Representative (USTR) announced, “For the first time in any U.S. trade agreement, the United States in proposing a new provision … that will obligate Parties to seek to achieve an appropriate balance in their copyright systems in providing copyright exemptions and limitations.”

Such limits, long urged by scholars and activists, would allow for the “fair use” of copyrighted material for a variety of critical, scholarly or journalistic purposes.

While the USTR describes these principles as “critical aspects of the U.S. copyright system”, watchdogs have noted that such ideals often tend not to be exported via international agreements.

Having been discussed for the past three years, though pushed primarily by the United States, the TPP is being discussed by the nine member states (in addition to three new entrants) during a secretive 13th round of negotiations held this week in San Diego, California. The talks will run through Jul. 10.

With the TPP’s ultimate size being left open, some observers are suggesting that the setup could bring about a new paradigm in the global economy. For many, such stakes only heighten the need for an open, transparent process of negotiations.

In this light, the USTR’s brief blog post, which only contained a single substantive paragraph on the new copyright decision, highlights how little is really known about the copyright discussions – or anything else in the San Diego talks.

Even parts of the U.S. government have been decrying this lack of transparency, including a significant contingent of President Barack Obama’s own party. Last week, four U.S. senators and 132 representatives sent a letter to the USTR, complaining that the U.S. Congress was being left out of the TPP discussions.

Warning against “needless secrecy and over-classification of documents”, the members complain that they have not even received summaries of the U.S. proposals. The letter notes that that “over 600 business interests” have had access to the negotiating text but that “small business, civil society, and other interests … have little meaningful input.”

According to Lori Wallach, with Public Citizen, a Washington-based consumer advocacy group, “The message to President Obama from his own party is clear: Neither the public nor members of Congress will tolerate more of these NAFTA-style trade agreements” – referring to the North American Free Trade Agreement, which Obama campaigned against in 2008 – “and the text of this deal must be released because there are major concerns about where it is heading.”

Over-privileging investors

The letter from Congress also notes troubling rumours that the TPP draft is currently “providing extraordinary investor-state privileges, and restricting access to lifesaving medicines in developing nations”.

These two issues have been of particular interest to observers, both in and out of the United States, in the run-up to the San Diego talks.

“Most of us would agree that the investor-state relations chapter is one of the most egregious parts of the TPP,” Kristin Smith, with the Stop TPP Coalition, told IPS from San Diego, where negotiators have been met daily by hundreds of protesters.

“This gives foreign corporations the right to sue governments when they feel their profits are being hindered by U.S. laws and regulations for things like public health, food safety, worker safety and environmental sustainability. These trade agreements are basically another corporate power tool to prioritise profits over people’s needs.”

Such concerns are being echoed by groups throughout the Asia-Pacific region currently involved in TPP negotiations.

For instance, under these provisions, “tobacco companies could challenge Malaysia’s regulations,” warned the Consumers’ Association of Penang on Thursday. “(E)ven just the prospect of such suits would have a ‘chilling effect’ on regulations.”

Meanwhile, the new U.S. move on copyright limitations would have no impact on the longstanding push to ensure that developing countries are able to maintain access to generic medicines, as this issue is covered under another chapter, on intellectual property.

“The United States … is demanding strict provisions that will reduce access to these affordable medicines,” six Malaysian medical organisations stated on Thursday. “(W)e categorically oppose US demands for longer and stronger patents on medicines and medical technologies that are essential to save Malaysian lives.”

Returning to the primary issue underpinning all such frustrations, the groups continue: “Since the negotiations and texts are secret, Malaysians have no way of knowing what has been agreed to and whether there have been overt and arbitrary breaches of the right to health.”